FAQ: How property is divided in a NY divorce

Property division is often a huge point of contention during a divorce. People want to keep certain belongings or they may even fight to retain as much property as possible out of spite or anger. Regardless of the emotions involved, a judge is in charge of dividing property between you and your spouse if you cannot reach an agreement together. If your property is going to be divided in court, you may be wondering about the following questions:

Q: How does court make decisions about property division?

A: New York operates under "equitable distribution." This means that each party has rights to keep separate property. Then, a judge will distribute marital property based on what is deemed most fair for each party's circumstances and contribution to the assets in question. This does not necessarily mean property will be split 50/50.

There are many circumstances a judge considers but a few include each party's income, health, future financial needs and ability to care for the children.

Q: What is considered separate vs. marital property?

A: Generally speaking, separate property is any asset that was owned prior to marriage or that was obtained specifically by you and not your spouse during marriage. This can include:

· Property or belongings you had obtained before marriage

· Gift given to you and not your spouse

· Compensation for an injury, as long as the injury did not lead to wage loss for the family

· Increases in value to assets that you own separately

Marital property, on the other hand, is either property obtained jointly after marriage or that became marital property through co-mingling or adding joint ownership. This could include:

· Any property or belongings purchased together

· Joint bank accounts or retirement accounts

· A separate bank account that a spouse later joined

· Separate belongings that increased in value because of a spouse's contribution

Q: What happens to our family home?

A: Because you and your spouse probably both contributed to the home, it is considered marital property. Like any other assets, you and your divorcing spouse can agree on how it should be distributed. You could choose to sell it and divide the proceeds or one or both of you may want to keep the home. It is understandable if you cannot reach an agreement, but if that is the case, a judge will make a decision.

You may have separate interests in the home if you contributed to it before marriage. If you sell the house, your contribution could be distributed back to you, since it is considered separate property. The rest of the value of the home will have to be distributed at the judge's discretion.

If one spouse wants to keep the home, they could potentially pay the other party's interest and refinance the house to gain sole ownership. However, if both spouses want to keep the home, the judge will have to make a decision about who keeps it. Oftentimes, whichever party ends up keeping the home must give up other assets to keep the property division equitable overall.

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